February 25, 2005

Interview: Robert Vischer Discusses the Religious Lawyering Movement

Our first interview, focusing on the religious lawyering movement, is with Robert Vischer, who is an Assistant Professor at St. John's University School of Law and Fellow of the Vincentian Center for Church and Society. He's also a participant in the Mirror of Justice blawg.

Legal ethics encompasses more than mere technical rules and "pitfalls for the unwary." But to what extent can (and should) religious commitment provide a deeper foundation for a practicing lawyer's ethics? Quite a few scholars and lawyers have recently been exploring that question. So, today we interview Rob Vischer, who's an active participant in that movement.

What is the religious lawyering movement?

The label was originally coined by Russ Pearce, and refers to the rapidly expanding assortment of books, law review articles, conferences, membership organizations, and even entire law school institutes devoted to exploring the relationship between a lawyer’s religious identity and professional identity.

Historically, when, where, and why did it arise?

Practicing lawyers have been addressing these questions for many years.Groups such as the Christian Legal Society, Catholic Lawyers’ Guild, St. Thomas More Society, International Association of Jewish Lawyers and Jurists, and National Association of Muslim Lawyers engage thousands of lawyers on questions regarding the relationship between faith and legal practice.In the academic world, Tom Shaffer built the foundation over the past thirty years for most of what has followed.Sanford Levinson wrote a well-known article on Jewish lawyering a dozen years ago, and things really got rolling in 1996 when Texas Tech held a conference on faith and the law, followed by two landmark conferences at Fordham in the late 1990’s. Since then, Fordham and Pepperdine have created institutes devoted to this area.

My sense is that the movement has gained more prominence in recent years for the same reasons that the various forms of “cause lawyering” and “moral lawyering” have garnered more attention.The prevailing assumption that a lawyer’s personal identity is of marginal relevance to her provision of legal services has been met with increasing skepticism.Our knowledge of human nature challenges the notion that our personal beliefs can be disconnected from our professional performance.And even if such a disconnection were feasible, lawyers are starting to realize that their professional performance is impoverished when they leave their own personhood out of the equation.Too often, the deliberate disregard of extralegal values leads to the harmful manipulation of law in pursuit of questionable client ends.(See, e.g., the Office of Legal Counsel’s “torture memo” or the legal advice of Enron’s outside counsel.)Further, if legal practice is going to be a vocation about which lawyers can feel passionate, it has to be linked to their most deeply held ideals and values.For lawyers of faith, the linkage must acknowledge and embrace the lawyer’s identity-shaping faith.

If someone wanted to investigate the movement, what would be some good introductory readings?

Thomas L. Shaffer, On Being a Christian Lawyer: Law for the Innocent (1981).

Robert K. Vischer , Heretics in the Temple of Law: The Promise and Peril of the Religious Lawyering Movement, 19 J. L. & Relig. 427 (2004)

What misconceptions exist about the movement?

There are two major misconceptions.One is the tendency to equate the debate over religion’s role in legal practice with the broader church-state debate.Lawyers are marketplace actors – in most settings, consumers are free to accept or reject a given lawyer’s services.Government actors (including judges), by contrast, usually are the only available source of a service, and often consumers have no choice but to interact with that particular government actor.As such, even putting Establishment Clause concerns to the side, there are plenty of reasons why a judge should have less discretion than a private lawyer to integrate her faith with her professional identity.In other words, the religious lawyering movement is not easily classified along the red state – blue state ideological divide; it’s a bit more nuanced than that.(Roy Moore cannot authentically invoke the umbrella of the religious lawyering movement for his actions during the Ten Commandments debacle in Alabama.)

The other misconception is the assumption that religious lawyering poses a threat to client autonomy.It bears emphasis that the participants in the religious lawyering conversations, to my knowledge, have not called into question the fundamental client-directed quality of legal representation.Lawyers of faith chafe at the profession’s traditional emphasis on role-differentiated morality – i.e., the suggestion that lawyers should facilitate client conduct as long as it is legal, regardless of its compatibility with the lawyer’s own moral convictions.Role-differentiation is not, however, to be replaced by the trump of the lawyer’s morality, but by moral dialogue in which both the lawyer and client treat each other as agents capable of meaningful moral thought and reflection.Lawyers must be vigilant against overreaching or subtle coercion when it comes to any contact with the client, and morality-driven conversations are no exception.

Does religious lawyering vary according to the lawyer’s religious tradition?

Across the religious landscape, there would be broad agreement that religious values are relevant to legal practice.The paths of integration, however, will vary not only according to the religious tradition, but also among adherents within a particular tradition.In general, faith communities that have more points of tension or resistance with the surrounding culture will also have more points of tension or resistance with the professional culture.In this regard, the integration of faith with legal practice may prove more meaningful (and more difficult) for an Orthodox Jew or conservative Catholic than for a Reformed Jew or Episcopalian.Just as different religions impart different outlooks on every aspect of life, they also impart different outlooks on every aspect of legal practice.

Does it make sense to speak of “a religious lawyering approach to commercial litigation?”In other words, what concrete differences in legal practice might a lawyer adopt if he or she adopted a stance of religious lawyering?

One consistent emphasis that religion brings to our professional culture is the notion that legal practice is, at its core, about human relationships.The concrete differences religious lawyering will make will tend to involve relational differences – i.e., seeing the client not simply as a source of predetermined legal instructions, but as a fellow human faced with circumstances brimming with moral significance. This is true not just with death row inmates, but with high-powered corporate executives.If a lawyer of faith is serious about engaging her client in a moral dialogue, the impetus must extend to the corporate boardroom, for there the impact of the dialogue will be even greater.On this particular question,

Does the religious lawyering movement take issue with the adversarial system?

I can’t speak for all religions, but Christians at least would embrace the adversarial system as affording procedural protections consistent with non-negotiable notions of human dignity.A system built on the dispersal of authority is needed given the reality of human sin.But Christians believe that sin is structural, not just individual, so that we cannot short-circuit our own moral agency by turning a blind eye to institutional failure.In other words, Christians cannot use their narrow role within the system as the justification for turning a blind eye to specific instances of injustice perpetrated by the system.

How do you view the standard account of legal ethics in the United States?Does it accommodate your approach?

The formalized American legal ethics regime is fine as long as its scope and ambition are clearly understood.The codes provide a baseline of conduct for lawyers, period.Our approach to the codes becomes dangerous to the extent it facilitates lawyers’ (and clients’) conflation of the question, “Is this permissible?” with the question “Is this the right thing to do?”As the ethics regime has become less aspirational and more bureaucratized, the danger has become more pressing.The codes embody a lowest-common-denominator approach to ethics; they are a fine place from which to begin to evaluate a proposed course of conduct, but the needed evaluation cannot be understood as being defined by the codes.Religion is among the many potential sources of additional conversation and reflection.

If you had a free hand to rewrite the Model Rules, what edits, if any, would you make based upon your religious lawyering outlook?

There are a handful of rules that might be problematic from a religious perspective.The comments to Rule 1.2, for example, instruct that a lawyer should ordinarily defer to the client regarding harm to third parties caused by the representation.Obviously, many religious lawyers will have difficulty delegating concern for others to their clients.The restriction on giving financial assistance to clients and the suggestion that representation does not amount to a moral endorsement of the cause are other examples of particular tension.

More broadly, however, religious lawyering is not aimed primarily at rewriting the ethics rules, but at reconceiving the relationship between a lawyer’s faith and her professional identity.This relationship is not prone to capture in rules, no matter how exhaustive or ambitiously framed they might be.Faith is better understood as the lens through which the lawyer sees the world, impacting how she perceives her client and the circumstances surrounding the representation.The legal profession’s emphasis on role-differentiated morality desensitizes an attorney to her own interpretive identity by portraying as irrelevant, even dangerous, any aspect of that identity, especially her religious identity, which might impact her service to the client.One thrust of the religious lawyering movement is to enhance the lawyer’s own self-awareness; the other is to equip her with the means of integrating her faith with her professional decision-making in a manner consistent with client autonomy.(I do not mean “client autonomy” in the sense that every client objective must be honored by every lawyer, but rather that client objectives must not be hijacked in pursuit of the lawyer’s religious agenda.If the lawyer’s religious beliefs will narrow the range of legal options, the client must be given a clear exit option.)

Is the religious lawyering movement going to become a dominant force in the legal profession, mirroring the statistical religiosity of Americans in general?

I doubt it.Even now, religious lawyering groups make up only a tiny fraction of the profession.Many (if not most) lawyers will identity as members of a religious tradition; far fewer will actively seek to bring their faith to bear on their professional services in any readily discernible way.The movement’s path is circumscribed by market forces.The last thing most lawyers want to do is create awkward relations with clients, and religion does hold that potential.Bringing faith into the attorney-client dialogue is not a cost-free exercise.Especially in the corporate world, clients may not take kindly to a lawyer’s attempts to engage them on questions of moral judgment, especially when the questions are grounded in a religious perspective.The religious lawyer’s project should not be dismissed as unprofessional, but it may prove unpopular.

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Interview: Robert Vischer Discusses the Religious Lawyering Movement

Our first interview, focusing on the religious lawyering movement, is with Robert Vischer, who is an Assistant Professor at St. John's University School of Law and Fellow of the Vincentian Center for Church and Society. He's also a participant in the Mirror of Justice blawg.

Legal ethics encompasses more than mere technical rules and "pitfalls for the unwary." But to what extent can (and should) religious commitment provide a deeper foundation for a practicing lawyer's ethics? Quite a few scholars and lawyers have recently been exploring that question. So, today we interview Rob Vischer, who's an active participant in that movement.